“The law of England has displayed no unnecessary nicety, in apportioning the punishments of death …. Kill your father, or catch a rabbit in a warren — the penalty is the same! Destroy three kingdoms, or destroy a hop-bine — the penalty is the same!”

E.P. Thompson’s classic Whigs and Hunters: The Origins of the Black Act, has its titular legislation as “an expression of the ascendancy of a Whig oligarchy, which created new laws and bent old legal forms in order to legitimize its own property and status”

On this date in 1723, seven Waltham Blacks were hanged at Tyburn.

These poachers were the impressive first salvo of the Black Act, a new-minted statute early in the landmark government of Robert Walpole.

This law had been enacted to combat the rise of game poaching. As we’ve noted before, poaching was a longtime conflict zone in a Great Britain emerging as distinctly capitalist.

The Black Act would not merely sharpen those conflicts — it would intentionally define them, helping to enclose a labor marketplace enforced with hemp.* The Black Act added nearly 50 capital offenses to the rolls; it was a seminal statute for the 18th century’s notorious “Bloody Code”.

“The Black Act had a much wider sweep than a statute intended merely to protect the royal forests,” Frank McLynn notes. Poaching gangs “provided the occasion for draconian legislation; they were not its cause.”

These huntsmen were, early in the 18th century, increasingly bold taking game on forest preserves in defiance of hunting restrictions that made an absurd mishmash of feudal anachronisms and latter-day statues all of which contrived to limit the hunt only to a handful of wealthy landed aristocrats. It was, per Blackstone, “a bastard slip, known by the name of the game laws … wantoning in the highest vigour.”

This vigourous wantoning actually made for a multilateral class conflict. The rural poor, being displaced by enclosures, were barred from opting out of proletarianization for a life on the forage. (Nobody was allowed to sell game meat.) Sportsmen had the run of the land, but only the very richly landed could be “sportsmen”: small farmers were forbidden to take game even on their own property, whereas those whose huge estates licensed them to hunt were entitled to tramp through neighboring crops in pursuit of their quarry.

Poaching followed these un-neighborly injuries to traditional commons rights as vigorously as hounds follow hares. The state answered with the Black Act, and did not scruple to accuse known companies of “Blacks” of being Jacobite catspaws.

So named because it targeted poachers’ practice of “blackening” their faces, the 1722 law made it a hanging crime to go on the hunt in disguise, as well as a hanging crime to poach deer, rabbits, conies, or fish. Formerly, “deer-stealing” and the like had been mere misdemeanors.

The act also mandated death for a broad range of other rustic crimes such as damaging orchards, gardens, or cattle, with like penalties attached to conspiring to commit any of these crimes or rescuing anyone imprisoned for these crimes.**

The seven hanged this date were “Blacks” who happened to be captured shortly after the Black Act took effect in mid-1723 — from Windsor forest, and elsewhere. As a show of resolve in enforcing its grim new decrees, the crown had all these men shipped to London, far from their own communities where jurymen themselves aggrieved by game laws were known to acquit.

* Lest one doubt this red-tinged historiography of the Act, its apologists were no less clear on its objectives.

“In this place it may not be improper to make a single remark on the game laws. These are supposed to be, possibly not without reason, severe: it is contended that those animals which are wild by nature are equally the property of every man. Perhaps this is the truth: but persons in the lower ranks of life should remember, that when laws are once enacted, THEY MUST BE OBEYED. Safety lies in acquiescence with, not in opposition to, legal institutions.” (emphasis added)

** Just for good measure, it also prescribed the noose for just about every form of arson, and for anyone who “shall wilfully and maliciously shoot at any person in any dwelling-house, or other place” regardless of injury.